Advanced Copyright Issues on the Internet - Fenwick & West LLP

2. Literary works, including computer programs and databases, protected by accesscontrol mechanisms that fail to permit access because of malfunction, damage or obsoleteness.The Librarian determined that an exemption was necessary to gain access to literary worksprotected by access control mechanisms, such as dongles or other mechanisms, that malfunctionor become obsolete. 484The Exemptions of 2003. On Oct. 27, 2003, the <strong>Copyright</strong> Office issued the seconddetermination of the classes of copyrighted works that the Librarian decided should have anexemption, with the exemption to be in effect until Oct. 27, 2006. 485 The classes, which are onlyfour in number and even more specifically defined than the first set of classes, 486 were asfollows:1. Compilations consisting of lists of Internet locations blocked by commerciallymarketed filtering software applications that are intended to prevent access to domains, websitesor portions of websites, but not including lists of Internet locations blocked by softwareapplications that operate exclusively to protect against damage to a computer or computernetwork or lists of Internet locations blocked by software applications that operate exclusively toprevent receipt of email. 487 The Librarian defined “Internet locations” to “include domains,uniform resource locators (URLs), numeric IP addresses or any combination thereof. 488 Thisclass is similar to the first class of exemptions in the Librarian’s first determination, but wasnarrowed so as to exclude the ability to circumvent blocked lists associated with firewalls, antivirussoftware and anti-spam software. 4892. Computer programs protected by dongles that prevent access due to malfunction ordamage and which are obsolete. This class is similar to the second class of exemptions in theLibrarian’s first determination, but was narrowed to cover only the case of obsolete donglesbecause the Librarian found that this was the only class for which adequate factual support of484485486487488489Id. at 64564-66. For the <strong>Copyright</strong> Office’s rationale for rejecting an exemption for a host of other proposedclasses of works, see id. at 64566-74.68 Fed. Reg. 62011 (Oct. 31, 2003).A statement accompanying the Librarian’s decision with respect to the exempted classes partially explained thenarrowness of the classes: “It is important to understand the purposes of this rulemaking, as stated in the law,and the role I have in it. The rulemaking is not a broad evaluation of the successes or failures of the DMCA.The purpose of the proceeding is to determine whether current technologies that control access to copyrightedworks are diminishing the ability of individuals to use works in lawful, noninfringing ways. The DMCA doesnot forbid the act of circumventing copy controls, and therefore this rulemaking proceeding is not abouttechnologies that control copying. Some of the people who participated in the rulemaking did not understandthat and made proposals based on their dissatisfaction with copy controls. Other participants soughtexemptions that would permit them to circumvent access controls on all works when they are engaging inparticular noninfringing uses of those works. The law does not give me that power.” Statement of theLibrarian of Congress Relating to Section 1201 Rulemaking, available as of Oct. 30, 2003 atwww.copyright.gov/1201/docs/librarian_statement_01.html.68 Fed. Reg. at 62013.Id.Id.- 119 -